2.3 (July 2002): 321-326
© 2002 National Communication Association

The Long and Winding Road

Diane Helene Miller

Patricia A. Cain. Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement. Boulder, CO: Westview Press, 2000. xi + 316 pages. Table of Cases, Bibliography, and Index. $30.00.

In the context of the conservative Bush administration, when federal legislation seems unlikely to remedy ongoing sexual orientation discrimination, Patricia A. Cain’s Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement is a timely and significant work for the lesbian and gay civil rights movement. A professor of law at the University of Iowa College of Law and a noted legal scholar with a longstanding commitment to issues of feminist and lesbian/gay jurisprudence, Cain guides the reader through the progress of the lesbian and gay civil rights movement as it makes its way along the twisting, winding pathway of legal challenges. With both impressive breadth and precise attention to detail, Cain presents a compelling narrative that chronicles the movement’s legal history and highlights the lawyers, organizations, and ordinary men and women who fought the legal battles that shaped the movement.

Cain identifies several themes of her book: the comparison of the lesbian and gay civil rights movement with earlier movements for race and sex equality; the relatively greater success of public sphere arguments compared with private sphere arguments in each of these movements; and the tension between legal arguments based on sameness and those based on difference (9). She situates her account in the context of the black Civil Rights and feminist movements, outlining the useful legal lessons that emerge from these earlier struggles and identifying their points of similarity with and difference from the lesbian and gay civil rights movement in terms of legal history, status, and strategy.

Cain argues that the legal strategies of previous social movements have focused on change in two realms—the public and the private—which are viewed by the legal system as distinct arenas. However, Cain shows how inextricably the two “separate” spheres are in fact intertwined. Within the context of the lesbian and gay civil rights movement, this connection is perhaps best illustrated by the infamous Bowers v. Hardwick Supreme Court case, in which the Court ruled that gay and lesbian adults do not have a Constitutional right to engage in consensual sexual acts within the privacy of their own homes. As a result of the fallout from the Hardwick ruling, Cain argues, it will be within the “crossover space between private and public . . . in which the lesbian and gay civil rights movement will need to break new ground” (40).

Viewing the Hardwick decision as a key moment in movement history that indelibly marked the course of future legal action, Cain divides her book into analyses of the pre-Hardwick years (1950-1985); the period of time leading up to and including the Hardwick case; and the years after the Hardwick decision was handed down. Within each time period, she addresses the status of public and private sphere rights, examining the relative success of arguments for equal access in the public sphere compared with the much more limited gains in such areas as family law and sodomy statutes. She concludes the book with a chapter identifying four key obstacles that the contemporary lesbian and gay movement must overcome in order to continue to advance equality and gain additional rights for lesbians and gay men.

Cain’s most compelling argument highlights the limitations imposed on lesbian and gay rights initiatives when private sphere rights are conceptualized as separate and distinct from equal rights and access in the public sphere, as they typically have been in liberal political philosophy (277). Public recognition of private gay and lesbian relationships is a key issue in contemporary debates over same-sex marriage, domestic partnership, immigration rights, inheritance, adoption, and other family rights. Yet because sameness arguments, historically the most effective legal arguments in other civil rights movements, target primarily public sphere rights, it has been difficult for litigators to make significant progress in advancing the types of arguments that would lead to expanded private sphere rights.

Cain’s response to this quandary is to argue for patience, and for the need to start but not end with propositions of sameness. Patience, she says, is necessary because the kinds of sweeping changes sought by civil rights movements simply take time. She writes, “law, especially judge-made law, is often slow to change. Law is rooted in the past and its consistency over time is one of its values” (281). Patience is also required because rushing to assert the value of our difference, while an affirming and beneficial approach in other contexts, has already proven unproductive in the courtroom. More effective in previous social movements, argues Cain, has been the strategic use of sameness arguments as a starting point to attack destructive assumptions of difference based on inaccurate stereotypes (278). In the case of African Americans, she writes, “Once the core sameness of being a human being, regardless of race, was recognized, it became possible to embrace real and valid differences, differences that are not based on stereotype” (278). While Cain acknowledges that this “embrace” is far from complete, she notes that, “the discussions of racial difference today are light-years away from the discussions in the old days. The new discussions would not be possible if the old stereotypes had not been shattered by connecting individuals through their sameness” (278).

While recognizing additional obstacles that are introduced when the issue is one of sexual orientation rather than race, Cain advocates an approach that would employ sameness arguments, both in the courts and within our own spheres of influence, while not sacrificing our right to our fundamental difference. She insists that we must argue for our essential humanity on the grounds that we “are fully human, not despite our gayness, but because of it” (286). Cain brings her argument back to the level of the individual by suggesting that each of us can contribute to the movement even if we never set foot in a courtroom. She draws the connection between the decisions of the courts and the views of our neighbors, both of which must be influenced by our visible presence and our claim to full humanity.

Cain’s insightful, balanced presentation of various controversies within the movement is one of the book’s key strengths. Her thoughtful, well-articulated exploration of the reasoning supporting opposite viewpoints—for example, the debate over whether same-sex marriage is a worthwhile focus for the movement’s resources and energy—educates readers about the varied perspectives involved and enables us to see the significance of these debates within the movement’s history. This approach permits readers to make up their own minds based on an understanding of the issue’s true complexity. Moreover, where differences of viewpoint occur between lesbians and gay men, feminists and non-feminists, or radical activists and what Cain terms “grassroots” members of the community, Cain presents all perspectives in a respectful and considered manner. She introduces the reader to key organizations and movement leaders by recognizing the contributions and strengths of each, while also addressing the controversy or criticism they have generated within the movement.

Cain’s work presents a comprehensive chronicle of the people and organizations that have impacted the lesbian and gay civil rights movement from the local to the national level. She shows how gay and lesbian bars, and later gay and lesbian student groups, provided the first sources of solidarity for gay men and lesbians, and subsequently led to the earliest gay and lesbian rights litigation. From these difficult and courageous beginnings to the present, Cain traces the evolution of legal theories and strategies supporting lesbian and gay civil rights, outlining the rationales for and consequences of legal decisions in a broad array of key cases throughout the U.S. She helps the reader understand why certain legal approaches were chosen or rejected, why a strategy may have succeeded or failed in a particular case, and what impact these victories and defeats had in defining subsequent legal avenues for change. By carefully analyzing the language used in Supreme Court decisions and dissenting opinions, Cain explains the likely impact of each ruling on future legal challenges. She also considers the role of judges’ personal identities, experiences, and politics in affecting the outcome of various cases, especially those heard at the federal appellate or Supreme Court levels.

Another value of Cain’s work lies in her ability to see beyond the immediate gains of a particular legal victory, or the short-term losses of a defeat, to identify the broader long-range consequences. A single legal decision, Cain demonstrates, can have both positive and negative impact on a social movement and on individual lives. Cain illustrates how even an apparently crushing defeat, such as that suffered in Hardwick, may have less uniformly devastating effects than we might anticipate, and may even produce some positive outcomes (such as generating greater public interest in and discussion of lesbian and gay rights issues). In this way the author investigates nuances that a more cursory examination or a less perceptive scholar might overlook. Cain guides the reader to a more sophisticated understanding of the process of legal change, the complicated relationship between legal decisions and societal change, and the varied and often unforeseen consequences of any given legal outcome.

We also come to understand, in much greater depth, the appeals process through which a lower court’s decision may be reversed or affirmed several times over, often rendering both defeat and victory short-lived. By examining the various levels at which rulings are rendered, Cain reveals the many layers of opinion and legal reasoning that might otherwise remain hidden. She thereby provides the lay reader with a multifaceted understanding of the legal process and its frequent twists and turns, offering greater insight into both the possibilities and limitations presented by seeking legal remedies to problems of discrimination. In particular, Cain provides a very careful parsing of the Supreme Court decision in Romer v. Evans, the landmark case in which the Court overturned Colorado’s anti-gay Amendment 2. She offers a fascinating discussion of legal strategy and timing with respect to Supreme Court appeals, explaining how decisions about whether and when to move forward with high-level appeals may be influenced by the tenor of recent Court rulings.

Rainbow Rights is a valuable book for anyone with an interest in the lesbian and gay civil rights movement, the relationship between the legal system and social change, or the manner in which particular modes of argument may limit or expand the rights of minority groups who suffer discrimination and prejudice. In addition to providing a valuable resource for lawyers and law students, Rainbow Rights is an excellent text for graduate-level courses in gay and lesbian politics or rhetoric; the rhetoric of social movements; legal rhetoric; the rhetoric of sexuality; feminist legal theory; and sexuality and the law. It provides an ideal overview for those seeking an introduction to the history of the lesbian and gay civil rights movement, and for those interested in learning about the role of legal discourse in social movements.

Cain writes from the perspective of a legal scholar with many years of experience working and writing in this field, yet her work is accessible to an audience lacking any specialized legal knowledge. She does an excellent job of making complex legal issues clear without oversimplifying them. She clearly defines the legal terms that are pertinent to the cases under discussion, and avoids excessive legal jargon. Cain presents the movement’s history as an absorbing tale; she combines an incisive legal analysis with the talents of a skilled writer, creating a work that holds the reader’s complete attention as it educates and enlightens.

Rainbow Rights offers a riveting narrative about the history of legalized anti-gay discrimination and about the civil rights struggle to defeat it. Ultimately, despite their limitations and the necessarily slow pace of change, Cain demonstrates her faith in the courts and in legal remedies to lead the way in our struggle for civil rights and equal justice. Cain’s work illuminates the winding path that the lesbian and gay civil rights movement has traveled so far, and lights the way toward the most promising directions for our future efforts.

Diane Helene Miller is the Director of International and Multicultural Services at Brenau University in Gainesville, Georgia.